Submitted: March 14, 2019
from United States District Court for the District of
GRUENDER, BENTON, and GRASZ, Circuit Judges.
Faulkner appeals the district court's denial of his
motion to vacate his sentence under 28 U.S.C. § 2255,
arguing his prior conviction for Indiana burglary did not
justify a sentence enhancement under the Armed Career
Criminal Act ("ACCA"). We affirm.
was convicted in 2015 of being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§
922(g)(1) and 924(e)(1). The district court imposed an
enhanced sentence of 280 months of imprisonment after finding
Faulkner had previously been convicted of four qualifying
predicate offenses under the ACCA: a 1982 attempted burglary
in Illinois, a 1984 burglary in Indiana, and two 1996 federal
drug crimes. On direct appeal, Faulkner challenged the
district court's reliance on three of his four predicate
convictions in imposing the enhancement - all but his 1984
Indiana burglary conviction. United States v.
Faulkner, 826 F.3d 1139, 1147-49 (8th Cir. 2016). During
the appeal, the government conceded the 1982 Illinois
burglary conviction no longer qualified under Supreme Court
precedent. Id. at 1147 (citing Johnson v. United
States, 135 S.Ct. 2551 (2015)). But we agreed with the
government that Faulkner's previous federal drug
convictions were two separate offenses and, combined with his
unchallenged 1984 Indiana burglary conviction, still
justified the enhancement for having three qualifying
offenses under 18 U.S.C. § 924(e). Id. at 1149.
We therefore affirmed the sentence. Id.
then filed a motion in 2017 to vacate his sentence under 28
U.S.C. § 2255, challenging for the first time the
district court's reliance on his 1984 Indiana burglary
conviction when imposing his sentence. The district court
denied the motion and concluded Faulkner's challenge was
procedurally defaulted because he failed to raise it at trial
or on direct appeal. The district court thus found the claim
not cognizable unless it fit a miscarriage-of-justice
exception. The district court then considered Faulkner's
merits arguments and determined, in relevant part,
Faulkner's Indiana burglary offense was not broader than
the generic offense in light of a recent Seventh Circuit
decision rejecting an identical argument in a different case.
See United States v. Perry, 862 F.3d 620 (7th Cir.
2017). The district court granted a certificate of
appealability, and Faulkner now appeals the denial of his
§ 2255 motion.
not address whether Faulkner's argument regarding his
1984 burglary conviction is defaulted because we agree with
the district court on the merits. If a defendant convicted of
being a felon in possession of a firearm or ammunition under
18 U.S.C. § 922(g)(1) has at least three previous
convictions for a "violent felony" or serious drug
offense, "the ACCA increases the range of possible
sentences" from a maximum of ten years in prison
"to a mandatory minimum of fifteen years."
United States v. Naylor, 887 F.3d 397, 399 (8th Cir.
2018) (en banc) (citing 18 U.S.C. § 924(a)(2), (e)(1)).
The ACCA expressly defines "violent felony" to
include "burglary." 18 U.S.C. §
924(e)(2)(B)(ii). But Faulkner's Indiana burglary
conviction counts as ACCA "burglary" only if the
elements of this state offense are no broader than
(i.e., cover no more conduct than) the elements of
the "generic offense." Naylor, 887 F.3d at
399 (quoting Mathis v. United States, 136 S.Ct.
2243, 2247 (2016)). Because neither party disputes
Indiana's burglary statute in 1984 "sets out a
single (or 'indivisible') set of elements to define a
single crime," we apply the categorical approach and
"simply compare the [state] statute's elements to
those of generic burglary to see if they match."
Id. at 400 (quoting Mathis, 136 S.Ct. at
court reviews de novo the district court's determination
that a defendant's prior conviction constitutes a violent
felony under the ACCA." Id. at 400 (quoting
United States v. Walker, 840 F.3d 477, 489 (8th Cir.
Seventh Circuit has observed, the definition of Indiana
burglary "is nearly identical to that of
'generic' burglary." Perry, 862 F.3d at
622. "Indiana law defines burglary as 'break[ing]
and enter[ing] the building or structure of another person,
with intent to commit a felony or theft in it.'"
Id. (alteration in original) (quoting Ind. Code
§ 35-43-2-1). And the Supreme Court has defined generic
burglary as "an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to
commit a crime." Taylor v. United States, 495
U.S. 575, 598 (1990). This parity comes as little surprise
since the Supreme Court relied for its definition on
"the generic sense in which the term is now used in the
criminal codes of most States." Id.
disagree with Faulkner's argument that Indiana burglary
is nonetheless broader than the generic offense simply
because the Indiana Supreme Court has construed
"structure" in the state statute to include even
outdoor, fenced-in areas. See McCovens v. State, 539
N.E.2d 26, 29 (Ind. 1989) (applying state burglary statute to
fenced-in area surrounding a business); Gray v.
State, 797 N.E.2d 333, 336 (Ind.Ct.App. 2003) (applying
the statute to fenced-in car lot at an auto-repair shop).
But see Calhoon v. State, 842 N.E.2d 432, 435
(Ind.Ct.App. 2006) (refusing to apply the statute to area
only partially enclosed by a fence). The Seventh
Circuit's recent decision in Perry rejected an
identical argument. See Perry, 862 F.3d at 622-24
(holding because Indiana courts have applied the state
burglary statute to breaking and entering into
wholly-enclosed fenced-in areas and not curtilage,
vehicles, or other movable conveyances, Indiana burglary is
no broader than the generic offense). We agree with the
Seventh Circuit for the reasons discussed in its
well-reasoned opinion. See id.
argues the Seventh Circuit failed to conduct a "close
analysis" of Supreme Court precedent allegedly
clarifying that "structure" in the generic offense
means only "something very akin to a building." It
is true the Supreme Court has recognized Congress included
burglary as an ACCA predicate offense because "[t]he
fact that an offender enters a building to commit a
crime often creates the possibility of a violent
confrontation between the offender and" another person.
Taylor, 495 U.S. at 588 (emphasis added). The
Supreme Court has also said the generic meaning of burglary
is "practically identical" to an earlier version of
the ACCA expressly defining burglary to include entering only
into a building.Id. at 598. Finally, the
Supreme Court has observed generic burglary
"approximates" the Model Penal Code's
contemporaneous definition of burglary: i.e.,
"enter[ing] a building or occupied
structure, or separately secured or occupied portion thereof,
with [the] purpose to commit a crime ...